Eliot Spitzer, New York State Attorney GeneralBy: Donald E. Shehigian, Esq., Of Counsel

Third-party defendant's
attorney:

Signature date:

September 30, 2004

City:

Hauppauge

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

By Order to Show Cause, Marvin Rothenberg, Michael Rothenberg and Richard L.
Cohen (hereinafter "claimants"), ask this Court to direct the comptroller to
distribute the advance payment for their condemnation proceeding to claimants
with appropriate interest and for a determination that Kevin J. Burke, Lorraine
A. Burke, Kim Gross and Jeffrey Amato have no legal or equitable interest in
said advance payment or any award made in respect to the condemnation
proceeding[1]. This Order to Show Cause is
brought by claimants pursuant to Court of Claims Act §23.

Defendant, through its eminent domain powers, vested title in itself to a
portion of claimants' land on August 12, 2003.[2]
On October 1, 2003, defendant offered an advance payment to claimants. The
advance payment was accepted with a reservation to bring an action in this
Court.

A fence located on the subject property does not belong to claimants and may
belong to adjoining property owners. The adjoining properties are owned by
Kevin J. Burke, Lorraine A. Burke, Kim Gross and Jeffrey
Amato.[3]

In opposition, defendant objects to the timing of the service of the Order to
Show Cause and claims that possible interested parties were not properly served.

The Court notes that service was accomplished on the adjoining property owners
through either personal service or "nail and mail". Claimants have filed
affidavits of service attesting to their attempts at service. To date, the
Court has not heard from the adjoining property owners.

This Court has jurisdiction to determine apportionment of the advance payment
and the priorities of the parties who have a claim to the award (Eminent Domain
Procedure Law § 304 and Court of Claims Act § 23).

Defendant's remaining objection to distribution of the advance payment is that
not all title objections have been cleared. However, defendant makes no
specific allegations as to what objections have not been cleared.

Based on the foregoing, the Court finds that claimants are the only parties
entitled to the distribution of the advance payment, as well as any award made
in condemnation. Claimants are directed to serve the decision and order with
notice of entry upon defendant, as well as Kevin J. Burke, Lorraine A. Burke,
Kim Gross and Jeffrey Amato within thirty (30) days of the filing date of this
decision and order. Claimants shall file the affidavits of service of the
decision and order with notice of entry with the Clerk of this Court. The
Comptroller's Office is directed to distribute the proceeds of the advance
payment to claimants no sooner than thirty (30) days after the filing of all
affidavits of service.

Defendant makes a further application that this Court recuse itself from
adjudicating the underlying claim. The basis for defendant's application is
claimants' inadvertent disclosure of the advance payment to this Court in its
motion papers. The Court grants defendant's application. Accordingly, this file
is being returned to the Clerk of the Court for such reassignment as the
Presiding Judge may deem appropriate.

Accordingly, the Clerk is directed to seal any and all papers submitted upon
this special proceeding and this Order until after the trial of this matter and
the entry of judgment.

September 30,
2004Hauppauge, New York

HON. JAMES J. LACKJudge of the Court of
Claims

[1]The following papers have been read and
considered on claimants' Order to Show Cause: Order to Show Cause filed May 17,
2004; Petition of Jason M. Penighetti, Esq. in Support of Relief Pursuant to
EDPL §304(E)(1) and CCA §23 with annexed Exhibits 1-6 dated May 5,
2004 and filed May 17, 2004; Verified Answer to Petition of Donald E. Shehigian,
Of Counsel to Eliot Spitzer, New York State Attorney General, dated May 17, 2004
and filed May 18, 2004; Reply Affirmation of Jason M. Penighetti, Esq. with
annexed Exhibit A dated May 25, 2004 and filed May 26, 2004.

[2]Claimants have failed to present evidence that
they are the owners of the subject property. However, in defendant's answer to
the Order to Show Cause, defendant admits that claimants are the owners of the
subject property (defendant's Affirmation par. "FIRST").